A.
Philosophy.
(1)
Termination of parental rights is not the custom or tradition of
the Menominee people. At times it is necessary to sever that parent-child
relationship when it is in the child's and family's best interest.
Therefore, severance of the parent-child relationship can be sought
as a last resort and after all other options, including customary
adoptions, are considered by the party requesting the termination
of the parent/child relationship.
(2)
Suspension of parental rights permanently transfers the custody of
the child to adoptive parents without completely severing the parental
recognition of the child's birth parents.
(3)
It is the fundamental belief of the Menominee Indian Tribe of Wisconsin
that its children are the sacred responsibility of the Tribe. It is
a basic inherent sovereign right to make decisions regarding the best
interests of its children, including who should provide for the care,
custody, and control of its children.
B.
Legal effect.
(1)
Termination of parental rights means that, pursuant to Court order,
all rights, powers, privileges, immunities, duties, and obligations
existing between parent and child are permanently severed; however,
tribal membership, rights, privileges, entitlements, or obligations
shall not be affected by such termination.
(2)
Termination of parental rights may only be ordered in a proceeding
where the petition clearly states that the petitioner is seeking an
order of termination of parental rights, and where the mother and
father have been summoned to appear before the Court. No termination
of the parental rights of an unadjudicated or unacknowledged father
may be ordered without evidence and findings as to the paternity of
the child to the satisfaction of the Court.
(3)
Suspension of parental rights means that pursuant to Court order,
all rights, powers, privileges, immunities, duties, and obligations
existing between parent and child are permanently suspended; however
tribal membership, rights, privileges, entitlements, or obligations
shall not be affected by such suspension.
A.
Any person or agency that has a legitimate interest in the welfare
of a child, including the Department may cause a petition to be filed
for the suspension or termination of the parent-child relationship
alleging one of the following grounds, that the parent:
(1)
Has abandoned the child for more than three months; or
(2)
When there is a judicial determination that the child is a surrendered
infant; or
(3)
When the parent has surrendered and relinquished the child to an
employee of any medical facility, fire station, sheriff's department,
police station, emergency medical services provider, or any other
law enforcement agency, within 30 days of the child's birth; or
(4)
Has abused or neglected the child, and the child has been adjudged
to be in need of protection or services and placed or continued in
a placement outside of his/her home pursuant to one or more Court
orders, and the parent has not made substantial progress toward his/her
Court-ordered conditions and it appears that the parent is not going
to meet those conditions within the nine-month period following the
filing the petition of the termination of the parent child relationship;
or
(5)
Is unable to discharge parental responsibilities because of a determination
of a mental condition or a history of chronic abuse of dangerous drugs,
controlled substances or alcohol and there are reasonable grounds
to believe that the condition will continue for a prolonged indeterminate
period; or
(6)
Is deprived of his/her civil liberties due to the conviction of a
felony, or if convicted in tribal Court a crime of a similar offense,
and the offense is of such nature as to show the unfitness of such
parent to have custody and control of the child, or if the sentence
of such parent is of such length that the child will be deprived of
a normal home for a period of years; or
(7)
When a child has been in foster care for 15 of the most recent 22
months.
(8)
Conviction of violent or sexual crime. A parent of the child is convicted
of a violent or criminal sexual crime against the other parent or
a sibling of the child.
(9)
Has sexually assaulted the child and parenthood is a result of the
sexual assault;
(a)
Parenthood as a result of sexual assault, which shall be established
by proving that the child was conceived as a result of a sexual assault.
Conception as a result of sexual assault as specified in this subsection
may be proved by a final judgment of conviction or other evidence
produced at a fact-finding hearing indicating that the person who
may be the father of the child committed, during a possible time of
conception, a sexual assault as specified in this subsection against
the mother of the child.
B.
When the Department recommends the filing of a suspension or termination
of parental rights, the petition shall be filed by Prosecutor.
C.
The Court shall appoint legal counsel for the parent(s) and shall
appoint a guardian ad litem for the child.
A.
Any person or agency that has a legitimate interest in the welfare
of a child, including, but not limited to a parent(s), a relative,
foster parent, the Department, may cause a petition to be filed for
the voluntary suspension or termination of the parent-child relationship
alleging grounds that the parent(s) have voluntarily relinquished
their rights to a child or have consented to adoption.
B.
When the Department recommends the filing of a suspension or termination
of parental rights, the petition shall be filed by the Prosecutor.
C.
Any petition for suspension termination of parental rights filed
pursuant to this section shall include documentation of the parent's
voluntary consent and/or consent to adoption.
A.
A petition for the suspension or termination of the parent-child
relationship filed pursuant to this article must clearly state whether
the petition is for a suspension or termination and shall include:
(1)
The name, address and physical residence of the petitioner;
(2)
The name, sex, date and place of birth, and residence, including
current placement of the child;
(3)
The basis for the Court's jurisdiction;
(4)
The relationship of the petitioner to the child or the fact that
no relationship exists;
(5)
The names, addresses, physical residence, domicile and dates of birth,
of the legal parents, if known;
(6)
The names and addresses of the persons having legal custody or guardianship
of the child or acting in loco parentis to the child, or child welfare
agency having legal custody or providing care for the child;
(7)
The grounds on which suspension or termination of the parent-child
relationship is sought;
(8)
Names and addresses of potential guardian/adoptive parent if different
from above; and
(9)
Sworn statement that all other permanency options were exhausted
prior to filing the petition.
B.
In a voluntary suspension or termination proceeding, the consenting
parent(s) must:
(1)
Meet with the judge and be advised of the rights that the parent(s)
are giving up and the implications associated with suspending or terminating
the parent-child relationship; and
(2)
That the parent(s) rights are not officially suspended or terminated
until the Court orders suspension or termination of rights.
C.
Once a consent form is obtained, and reviewed with the judge, and
if the parent(s) chooses to waive his/her right to attend future hearings,
documentation and verification of waiver of service of process, notice
and/or appearance shall be provided to the Court.
D.
The Prosecutor will file a petition (or, if such a petition has been
filed by another party, seek to be joined as a party to the petition)
to suspend or terminate the parental rights of a parent(s):
(1)
Whose child has been in foster care for 15 of the most recent 22
months. The petition must be filed by the end of the child's 15th
month in foster care unless the Prosecutor can document good cause
as to why the best interest of the child is served by not filing at
the end of the child's 15th month in foster care.
(2)
Whose child has been determined by a Court of competent jurisdiction
to be a surrendered infant. The petition to terminate parental rights
is made within 60 calendar days of the judicial determination that
the child is a surrendered infant; or
(3)
Within 60 calendar days of a judicial determination that reasonable
efforts to reunify the child and parent are not required.
E.
The Menominee Tribe may elect not to file or join a petition to suspend
or terminate the parental rights of a parent if:
(1)
The child is being cared for by a relative pursuant to a Court order;
(2)
The Department has documented in the case plan and presented to the
Court a compelling reason for determining that filing such a petition
would not be in the best interests of the individual child; or
(3)
The Department has not provided to the family, consistent with the
time period in the case plan, services that the Department deems necessary
for the safe return of the child to the home, when reasonable efforts
to reunify the family are required.
F.
Prior to filing or joining a petition to suspend or terminate parental
rights, the Department shall have identified and approved a qualified
adoptive family for the child.
A.
Service.
(1)
Service of process of the petition shall be personally served on
the parties at least seven days prior to the hearing.
(2)
If, with reasonably diligence, a party cannot be personally served,
service by publication of the notice may be made.
(3)
Upon verification of service, an initial hearing shall be scheduled
within 30 days of filing the petition.
B.
Notice.
(1)
Notice of the final hearing on the petition shall be sent to the
child's parent(s), their legal counsel, the Department, the legal
custodian(s), and the caretaker of the child.
(2)
The hearing notice sent by regular and certified mail to the parents
shall be sufficient verification that the notice is deemed complete.
Upon a proper showing by the petitioner that reasonable efforts were
made to notify the parents of the final hearing, the final hearing
may proceed and if failing to do so shall not be continued more than
once.
C.
Waiver.
(1)
Waiver means that the parent(s) will not be a party to the proceedings,
which would have entitled them to receive a copy of the petition,
an opportunity to respond, receive hearing notices, and participate
in the proceedings. A parent(s) shall have the right to withdraw the
waiver in writing or in open Court at any time prior to or at the
final hearing.
(2)
A parent may waive service of process in a voluntary proceeding,
in writing, that is notarized or attested to by two credible witnesses
18 years of age or older.
(3)
A parent properly served may waive notice and appearance in open
Court or in writing, notarized or attested to by two credible witnesses
who are 18 years of age or older.
A.
An investigative report shall be completed by the Department, an
agency or other person selected by the Court and submitted to the
Court prior to a final hearing, unless it was previously submitted.
B.
This report shall include:
(1)
The circumstances of the petition, the social history, the present
condition of the child and parent(s), permanency plan for the child,
and such other facts as may be pertinent to the parent-child relationship;
(2)
Include reasons and recommendations whether or not to suspend or
terminate the parent-child relationship and whether it is in the child's
best interest to do so;
(3)
A summary of whether the conditions necessary for suspension or termination
of parental rights under this article have been met, including, but
not limited to, an evaluation of whether the services necessary to
reunite the child with the parent(s), guardian(s) or caretaker(s)
and alleviate the necessity for suspension or termination of parental
rights have been offered, accepted, and if accepted, whether such
services were completed or successful; and
(4)
A summary of the likelihood of adoption, age and health of child,
whether the child has substantial relationships with the parent or
other family member and whether it would be harmful to the child to
sever those relationships, the wishes of the child, the duration of
the separation of the parent from the child, and whether the child
will be able to enter into a more stable and permanent relationship
as a result of the suspension or termination.
C.
The Court may order any additional studies it deems necessary.
A.
All hearings shall be closed. Only persons found to have a direct
interest in the case or in the work of the Court shall be admitted.
The contents of the hearing shall not be disclosed. The Court may
require the presence of any party and witness it deems necessary to
the disposition of the petition, except for a parent(s) who has executed
a valid waiver.
B.
There shall be no right to a jury trial at proceedings held to consider
the suspension or termination of a parent-child relationship.
A.
An initial hearing shall be scheduled within 30 days of the filing
of the petition to determine whether any party contests the petition,
to inform the parties of their rights and will proceed as follows.
B.
If the petition is contested, the Court shall set a date for a fact-finding
hearing to be held within 45 calendar days after the hearing on the
petition, unless the parties choose to commence with the hearing on
the merits immediately.
C.
If the petition is not contested, the Court shall hear testimony
in support of the petition, including testimony as required, at a
minimum, including the active and reasonable efforts that were made
to prevent the breakup of the family the reunification efforts provided
to achieve permanence and meet the permanency goals, and the best
interest of the child.
D.
Any party who is necessary to the proceeding, or who's rights may
be affected by ordering a suspension or termination of parental rights,
shall be granted a trial by the Court.
E.
Any nonpetitioning party, including the child, shall be granted a
continuance of the hearing to consult with an attorney concerning
a request for the substitution of a judge.
F.
Before accepting an admission of the alleged facts in the petition
the Court shall:
(1)
Address the parties present and determine that the admission is made
voluntarily, with understanding of the nature of the acts alleged
in the petition and the potential dispositions; and
(2)
Establish whether any promises or threats were made to elicit an
admission and alert unrepresented parties to the possibility that
a lawyer may discover defenses or mitigating circumstances which would
not be apparent to them; and
(3)
Make such inquiries as satisfactorily establish that there is a factual
basis for the admission.
If the suspension or termination of the parent-child relationship
is contested, a fact-finding hearing shall be conducted as follows:
A.
Hearings on petitions shall be conducted by the Court separate from
other proceedings. The proceedings shall be recorded. The Court shall
advise the parties of their basic rights pursuant to this article.
B.
All hearings shall be closed to the general public. Only the parties,
their legal counsel, witnesses and other persons requested by a party
and approved by the Court may be present at a closed hearing, and
on the condition that they respect the confidentiality of the proceedings.
C.
Those persons or parties who intentionally divulge information in violation of Subsection B of this section shall be guilty of an offense. Persons found guilty of violating the provisions of this section shall be subject to pay a civil fine not to exceed $500.
D.
The Court, after hearing all of the evidence, shall make and record
its findings on whether or not:
(1)
Grounds exist for the suspension or termination of parental rights;
(2)
Whether reliable or credible information showing that continued custody
of the child or Indian child by the child's parent or Indian custodian
is likely to result in serious emotional or physical damage to the
child and reliable and credible information showing that active efforts
have been made to prevent the breakup of the child's family and that
those efforts have proven unsuccessful.
E.
The Court may only decide whether any grounds for the suspension
or termination of parental rights have been proved and whether the
allegations have been proved in cases involving the involuntary suspension
or termination of parental rights. The Court shall decide what disposition
is in the best interest of the child after those findings.
F.
If grounds for the suspension or termination of parental rights are
found by the Court, the Court shall find the parent unfit. A finding
of unfitness shall not preclude a dismissal of a petition. The Court
shall then proceed immediately to hear evidence and motions related
to disposition. The Court may delay making the disposition and set
a date for a dispositional hearing no later than 45 days after the
fact-finding hearing if any of the following apply:
(1)
All the parties to the proceeding agree.
(2)
The Court has not yet received a report to the Court on the history
of the child and the Court now orders an agency to file that report
with the Court, or the Court now orders that agency or requests the
tribal child welfare department of the Indian child's tribe to file
such a report before the Court makes the disposition on the petition.
G.
If the Court delays making a permanent disposition, it may transfer
temporary custody of the child to an agency for placement of the child
until the dispositional hearing, in accordance with the order of placement
preference.
A.
Having found that grounds exist for the suspension or termination
of parental rights and the active efforts of the Department to prevent
the breakup of the family, the Court, after hearing all of the evidence,
shall make and record its findings on:
(1)
Whether or not it is in the best interest of the child to suspend
or terminate the parental rights. The Court shall consider the following
factors:
(a)
The likelihood of the child's adoption after termination;
(b)
The age and health of the child, both at the time of disposition
and, if applicable, at the time the child was removed from the home;
(c)
Whether the child has substantial relationships with the parent
or other family members, and whether it would be harmful to the child
to sever these relationships;
(d)
The wishes of the child;
(e)
The duration of the separation of the parent from the child;
(f)
Whether the child will be able to enter into a more stable and
permanent family relationship as a result of the suspension or termination,
taking into account the conditions of the child's current placement,
the likelihood of future placements and the results of prior placements.
(2)
Whether reasonable efforts to achieve the permanency goal of the
permanency plan, including through an out-of-state placement if appropriate,
were made by the Department or agency responsible for providing services.
B.
Disposition order.
(1)
The disposition order must be in writing.
(2)
The Court shall order the following:
(a)
Whether parental rights are terminated.
(b)
The guardianship, placement and care responsibility, and custody
of the child.
[1]
If guardianship or custody is transferred to a Department or
agency, that agency shall be responsible for securing the adoption
of the child or establishing the child in a permanent family setting.
(c)
Placement preferences have been made in accordance with this
chapter or there is good cause to depart from the order of placement
preferences.
(3)
If the Court finds that the parental rights should be suspended or
terminated and it is in the best interest of the child, the Court
shall issue specific findings suspending or terminating the parent-child
relationship described above and take one of the following courses
of action:
(a)
Transfer legal custody to a potential adoptive parent(s) pending
the issuance of an adoption decree; or
(b)
Transfer legal custody to an individual or an authorized agency
that shall identify an adoptive parent(s) pending the issuance of
an adoption decree; and
(c)
If no adoption decree has been issued within six months, the
Court shall conduct a review hearing and thereafter every six months
until an adoption decree is issued.
(4)
Where the Court does not order suspension or termination of the parent-child
relationship, it shall dismiss the petition, unless the Court finds
that, in the best interests of the child, it is necessary to issue
an order for the petitioner to file the appropriate pleadings to address
other permanency options for the child.
(5)
All dispositional orders shall be conclusive and binding on all persons
from the date of entry.
(6)
The final order shall include a provision ordering the adoptive parents
to maintain the child's relationship with the Tribe.
C.
Amendments to disposition order.
(1)
The Court may amend the order to transfer the child's guardianship
and custody to any agency approved by the Department and the Court
that consents to the transfer, if the Court determines that the transfer
is in the best interest of the child and a post disposition permanency
plan shall be filed with the Court and shall be made part of the Court
order.
(2)
Either the Court of the Department or Agency that filed the permanency
plan shall furnish a copy of the original plan and each revised plan
to the child is he or she is 12 years of age or older, the child's
guardian, to the child's foster parent, the operator of the facility
in which the child is living, or the relative with whom the child
is living, and there was an non-Menominee Indian child under an involuntary
petition to the Indian child's tribe.
D.
Final judgments by a disposition order suspending or terminating parental rights are appealable under § 278-76 procedure. The clearly erroneous standard shall be used in reviewing the findings of the trial Court on appeal from an order suspending or terminating parental rights.
E.
Final judgments by a disposition order suspending or terminating
parental rights are subject for rehearing or motion for relief only
under the following circumstances:
(1)
Except as provided in Subsection E(2) below, the child whose status is adjudicated by the Court, the parent, guardian, caretaker, or legal custodian of that child or the unborn child whose status is adjudicated by the Court or the expectant mother of that unborn child may at any time within one year after the entering of the Court's order petition the Court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the Court's original adjudication. The new evidence must be new, not just new to the parties. If the evidence was available or could be found at the time of the original hearing that evidence is not new. Upon a showing that such evidence is new and does exits, the Court shall order a new hearing.
(2)
A parent who has consented to the suspension or termination of his
or her parental rights or who did not contest the petition initiating
the proceedings in which his or her parental rights were suspended
or terminated may only be filed on the following grounds:
(a)
Mistake, inadvertence, surprise, or excusable neglect.
(b)
New-discovered evidence, which entitles a party to a new trial.
(c)
Fraud, misrepresentation, or other misconduct of an adverse
party.
(d)
The judgment is void.
(e)
A prior judgment upon which the judgment is based has been reversed
or otherwise vacated.
(f)
A motion under this subsection must be filed within 30 calendar
days after the entry of judgment and does not affect the finality
or suspend the operation of the judgement or the suspension or termination
of parental rights. Motions under this subsection and appeals to the
Supreme Court shall be the exclusive remedies for such a parent to
obtain a new hearing.
F.
The mother of a child who completes an affidavit stating the she
acknowledges identity of the father or that she does not know the
identity of the father may not collaterally attack a judgment suspending
or terminating parental rights on the basis that the father of the
child was not correctly identified.
G.
In no event may any person, for any reason, collaterally attack a
judgment suspending or terminating parental rights more than one year
after the date on which the period for filing an appeal from judgment
has expired, or more than one year after the date on which all appeals
from the judgement, if any were filed, have been decided, whichever
is later.
H.
If a person whose parental rights were suspended or terminated is
present in the Court when the Court grants the order suspending or
terminating those rights, the Court shall provide written notification
to the person of the time periods for appeal of judgment. The person
shall sign the written notification and the person or persons counsel
shall file a copy with the Court on the date on which the judgment
is granted.
I.
If the agency or department specified under Subsection B(2)(b)[1] or B(3) is the Tribe, the Department shall seek a permanent adoptive placement for the child or seek to enter into a subsidized guardianship agreement with a proposed guardian of the child and petition the Court for the appointment of that individual as the guardian of the child.
A.
An order terminating the parent-child relationship shall divest the
parent and the child of all legal rights, privileges, duties and obligations
with respect to each other except the right of the child to inherit
and receive support from the parent(s). This right of support shall
be terminated by a final adoption decree. Tribal membership, rights,
privileges, entitlements, or obligations shall not be affected by
such termination for the child(ren) of adoption.
B.
An order suspending the parent-child relationship shall divest the
parent and the child of all legal rights, privileges, duties and obligations
with respect to each other except the right of the child to inherit
and receive support from the parent(s) but it does not completely
sever the parental recognition. This right of support shall be terminated
by a final adoption decree. Tribal membership, rights, privileges,
entitlements, or obligations shall not be affected by such termination
for the child(ren) of adoption.
C.
The parent-child relationship may be suspended or terminated with
respect to one parent(s) without affecting the relationship of the
other parent(s).
D.
The order shall not eliminate the blood quantum of the birth parent(s)
to the child.
A.
The section applies to the appeal of an order of judgment under § 278-74 and superseded all inconsistent provisions of this chapter.
B.
Definitions. In this section, "appellant" means a person who files
a notice of intent to pursue post-disposition or appellate relief.
C.
Appeal procedure.
(1)
A person seeking post-disposition or appellate relief shall comply
with this section. If the person desires to pursue post-disposition
or appellate relief, counsel representing the person during the suspension
or termination of parental rights proceedings shall continue representation
by filing a notice below unless discharged by the parties or the Court.
(2)
Notice of intent to pursue post-disposition or appellate relief.
A person shall initiate an appeal under this section by filing, within
30 calendar days after the date of entry of judgement or order appealed
from, a notice of intent to pursue post-disposition or appellate relief
with the Clerk of Tribal Court in which the judgement or order was
entered. Also within that time period, the appellant shall serve a
copy of the notice of intent on the person representing the interest
of the public, opposing counsel, the guardian ad litem for the child,
the child's parent and any guardian or custodian appointed. If the
record discloses that final adjudication occurred after the notice
of intent was filed, the notice shall be treated as filed after entry
of judgment or order appealed from on the date of the entry of the
final judgment or order. The notice of intent shall include:
(a)
The suspension or termination of parental rights case number
and caption.
(b)
An identification of the judgment or order form which the appellant
intends to seed post-disposition or appellate relief and the date
on which the judgement or order was entered.
(c)
The name and address of the appellant and the appellants legal
counsel.
(d)
For an appellant other than the Tribe, where the legal counsel
was appointed and whether the financial circumstances have materially
improved since the date of eligibility was determined.
(e)
For an appellant other than the Tribe, the signature of the
appellant on whose behalf the notice of intent is filed. The appellant's
legal counsel, if any, shall sign the notice, but may not sign in
lieu of the appellant.
(3)
Request for transcript.
(a)
The appellant shall pay for and request at the same time as
their notice of intent a transcript of the record and a copy of the
case record.
(b)
The Clerk shall file the transcript with the Court and serve
a copy of the transcript on the appellant within 30 business days
after the transcript is requested.
(c)
The Clerk shall file a copy of the case record within 30 days
after the record is requested.
(d)
The appellant shall serve copies on the transcript and case
record on all the other parties within five days after the appellant
received the copies.
(4)
Appellant's brief in chief. The appellant shall file an appeal brief
within 15 days after receiving the transcript.
(5)
Motion for remand. If the appellant intends to appeal on any ground that may require post-judgment fact-finding, the appellant shall file a motion within 15 days on receiving the transcript, raising the issue and requesting that the Supreme Court retain jurisdiction over the appeal and remand to the trial Court to heart and decide the issue. The appellant, or appellant's legal counsel, shall file an affidavit in support of the motion state with specificity the reasons that the post-judgment fact-finding is necessary. The affidavit must attest that remand is warranted and is not being sought to cause unnecessary delay. If the Supreme Court grants the motion for remand, it shall set time limits for the trial Court to hear and decided the issue, for the appellant to request transcripts of the hearing, and for the transcript of the hearing to be filed and served on all the parties. The Supreme Court shall extend the time line under Subsection C(4) (Brief in chief cite) for the appellant to file a brief presenting all grounds for relief in the pending appeal.
(6)
Respondent's brief. The respondent shall file a brief within 10 business
days after the service of the later of the appellants brief or the
guardian ad litem's brief, if the guardian ad litem takes the position
of the appellant.
(7)
Appellants reply brief. The appellant shall file within seven business
days after the service of the later of the respondent's brief or the
guardian ad litem's brief, if the guardian ad litem takes the position
of the respondent, a reply brief or statement that a reply brief will
not be filed.
(8)
Guardian ad litem's brief. If the guardian ad litem for the child
takes the position of the appellant, their brief shall be filed within
15 business days after the filing and service of the transcript. If
the guardian ad litem takes the position of the respondent, the guardian
ad litem's brief shall be filed within 10 business days after service
of the appellant's brief. If the guardian ad litem chooses not to
participate in an appeal, the guardian ad litem shall file with the
Court a state of reasons for not participating within 15 business
days of filing of the notice of appeal.
D.
Cases appealed under this section shall be given preference and shall
be taken in order that ensures that a decision is issued within 30
days after the filing of the appellants reply brief or statement that
a reply brief will not be filed.
